The opinion
ELY, Circuit Judge
(dissenting):
I respectfully dissent. One of the Hearing Examiner’s “Conclusions ol Law,” specifically No. 3, reads: “A *703 question concerning representation existed among employees of Respondent at all material times after May 1, 1968.” Additionally, the Examiner’s conclusion No. 4 was that the Respondent had engaged in unfair labor practices “[b]y continuing to bargain and entering into a contract with ICW while there was a question concerning representation .” (emphasis added). These “Conclusions of Law” were adopted by the Board and were, essentially, factual determinations for which I find plenty of evidentiary support in the record.
Next, I take exception to the majority’s concept, as “[s] imply stated,” of the issue before us. As I see it, the true is- • sue is whether an employer, while refusing to supply the Board with information deemed essential to the Board’s determination of whether a question of representation exists, has the power, paramount to that of the Board, to make its own self-determination that no such question does exist. My opinion is that it does not have, and should not have, such power. I do not asperse the employer’s motives in this particular case, but the impact of the majority’s opinion might, I believe, produce generally disastrous consequences. It opens a way by which an employer can unilaterally frustrate those free democratic processes through which employees are supposed tp be able to select their bargaining representative. When, as here, such an employer is presented with a petition claiming that a substantial number of its employees desires new representation and the Board seeks, as it should, to verify the claim, the employer may arbitrarily flout the Board, refusing to supply the barest factual data essential to the confirmation. Having thus been contemptuous of one of our most responsible governmental agencies, the employer may then quickly proceed, as the Respondent here did, to enter into another long-term contract with the challenged representative. And the contract, depending on existing relationships between all parties concerned, may, in its terms, have, operated to the grievous economic disadvantage of all the concerned employees, including, of course, those whose freedom of choice the Board sought to protect. I cannot believe that this is right; hence, I would grant the Board’s petition for the enforcement of its Order, which, incidentally, the Board itself described as “narrow.”